IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA SPARTANBURG DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA SPARTANBURG DIVISION ANGELICA ROCHA HERRERA, ) ) Plaintiff, ) ) Civil Case No.: v. ) ) JOHN L. FINAN, Chair of the South Carolina ) Commission on Higher Education, sued in his ) individual and official capacity; BETTIE ) ROSE HORNE, sued in her individual and ) official capacity; HOOD TEMPLE, sued in his ) individual and official capacity; TERRYE C. ) SECKINGER, sued in her individual and ) official capacity; NATASHA M. HANNA, ) sued in her individual and official capacity; ) ELIZABETH JACKSON, sued in her ) individual and official capacity; DIANNE C. ) KUHL, sued in her individual and official ) capacity; LEAH B. MOODY, sued in her ) individual and official capacity; CHARLES ) MUNNS, sued in his individual and official ) capacity; KIM F. PHILLIPS, sued in his ) individual and official capacity; and ) JENNIFER B. SETTLEMYER, sued in her individual and official capacity, ) ) ) Defendants. ) COMPLAINT FOR DECLARATORY JUDGMENT, DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES 1. This is a civil action brought by Plaintiff Angelica Rocha Herrera, by and through her attorneys, against Defendants, the Chairman and individual commissioners of the South Carolina Commission on Higher Education, in their individual and official capacities. Plaintiff seeks a declaration from this Court that the South Carolina Commission on Higher Education violated U.S. Constitutional guarantees of Equal Protection, Substantive Due Process, and Privileges and Immunities when it promulgated a rule that resulted in classifying a U.S. citizen dependent child 1

2 and resident of the State as unable to establish domicile in South Carolina based on State inquiry into her parents immigration status. Plaintiff seeks a declaration by this Court that S.C. Code Regs. R is unconstitutional as applied to her; thus, Plaintiff petitions this Court for permanent injunctive relief in order to prevent the continued application of these regulations. Further, Plaintiff seeks restitution and damages, an award of costs and attorneys fees, and such other relief as this Court deems equitable and just. JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over this action under 28 U.S.C. 1331, because this action arises under the United States Constitution and laws of the United States, and under 28 U.S.C. 1343, because this action seeks to redress the deprivation, under color of state law, of Plaintiff s civil rights and to secure equitable or other relief for the violation of those rights. 3. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C and 2202, and Federal Rule of Civil Procedure 57. Venue is proper under 28 U.S.C. 1391(b), because a substantial part of the events or omissions giving rise to the claims occurred in the District of South Carolina Spartanburg Division. Plaintiff applied to colleges and universities operating in the Spartanburg Division, and was deemed to be a non-resident of the State for tuition purposes in the Spartanburg Division. PARTIES 4. Plaintiff Angelica Rocha Herrera is a United States citizen who was born in Texas in 1994 and moved with her family a few years later to South Carolina where she has resided continuously since. Ms. Rocha Herrera has a South Carolina high school diploma, a South 2

3 Carolina voter s registration card, a South Carolina bank account, and other proof of her citizenship and continuous residence in South Carolina. 5. Ms. Rocha Herrera is an undergraduate student, planning to study mathematics with a minor in secondary education at Converse College in Spartanburg, South Carolina. However, she is classified as a non-resident because she is considered a dependent of parents who do not have documented federal immigration status. As a result of this non-resident classification, Ms. Rocha Herrera does not qualify for certain State financial aid and must pay more for tuition. 6. Prior to enrolling at Converse College for the academic year, Ms. Rocha Herrera was prepared to enroll at the University of South Carolina Upstate before the university re-classified her as a non-resident in July 2013 based on her inability to establish her parents federal immigration status as one of three options legal permanent resident, visa holder, or U.S. citizen on the website the university utilizes to determine students residency. Unable to afford the out-of-state tuition charged her, Ms. Rocha Herrera declined to enroll at the University of South Carolina Upstate, thus losing a selective Teaching fellowship granted to her as a qualified South Carolina high school student planning to pursue a degree in education and a career in the State s public schools following graduation. 7. Defendant John L. Finan is Chair of the South Carolina Commission on Higher Education. The Governor appointed Defendant Finan, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann (1976 Code, as amended). 8. Defendant Bettie Rose Horne is a member and Vice Chair of the South Carolina Commission on Higher Education. The Governor appointed Defendant Horne, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann

4 9. Defendant Hood Temple is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Temple, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann Defendant Terrye C. Seckinger is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Seckinger, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann Defendant Natasha M. Hanna is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Hanna, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann Defendant Elizabeth Jackson is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Jackson, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann Defendant Dianne C. Kuhl is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Kuhl, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann Defendant Leah B. Moody is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Moody, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann Defendant Charles Munns is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Munns, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann

5 16. Defendant Kim F. Phillips is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Phillips, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann Defendant Jennifer B. Settlemyer is a member of the South Carolina Commission on Higher Education. The Governor appointed Defendant Settlemyer, who will serve on the Commission until a successor is appointed and qualifies. S.C. Code Ann As Chair, Defendant Finan presides over meetings and operations of the Commission. As members of the Commission, each of Defendants has authority and responsibility for a coordinated, efficient, and responsive higher education system in South Carolina consistent with the [statutorily-defined] missions of each type of institution, which range from technical, vocational, or occupational colleges to research institutions, as outlined in the South Carolina Code. S.C. Code Furthermore, as members of the Commission, each of Defendants may prescribe uniform regulations for application of State statutes regarding determination of rates of tuition and fees for post-secondary educational institutions in South Carolina. S.C. Code Each of Defendants is sued in his or her individual and official capacities. LEGAL FRAMEWORK 19. South Carolina Statutes Section defines State domicile for purposes of determining tuition and fees students will pay upon entering or attending State post-secondary education institutions. 20. Under Section (A), in-state rates are available to independent persons and their dependents who reside in and have been domiciled in South Carolina for no less than twelve months with an intention of making a permanent home in the State. The residence and 5

6 domicile of a dependent minor is presumed to be that of the parent. S.C. Code (D). The statute does not require any information related to parents federal immigration status. 21. South Carolina Statutes Section (H) defines minor as a person less than eighteen years of age. Under Section (G)(1), a dependent or dependent person is one who derives her financial support not through her own earnings or entitlements but whose main source of income or support is payments from a parent and who qualifies as a dependent or exemption on the federal tax return of the parent. 22. South Carolina Statutes Section (C) defines residence as continuous and permanent physical presence within this State. The statutory definitions of residence or reside do not mention immigration status. 23. South Carolina Statutes Section (D) defines domicile as a person s true, fixed, principal residence and place of habitation;... the place where such person intends to remain, to which such person expects to return upon leaving without establishing a new domicile in another state... [and] one may have only one legal domicile. The statutory definition of domicile does not mention immigration status. 24. Regarding State financial assistance, a student must be a resident of South Carolina in order to be eligible for the Legislative Incentives for Future Excellence (LIFE) scholarship. S.C. Code , -20. Further, one of the requirements for a student to qualify for State grants is residency in South Carolina for at least one year. S.C. Code The statutes do not require any information related to parents federal immigration status. 25. Under S.C. Code , the South Carolina Commission on Higher Education has authority to prescribe uniform regulations for application of the State statutes 6

7 regarding determination of rates of tuition and fees students pay upon entering or attending State post-secondary education institutions. 26. Generally, South Carolina regulations acknowledge that [r]ules regarding the establishment of legal residence for tuition and fee purposes for institutions of higher education are governed by Title 59, Chapter 112 of the South Carolina Code. S.C. Code Regs South Carolina regulations define a dependent person s residency and domicile as the residency and domicile of the person upon whom she is dependent. S.C. Code Regs (C),- 603(B). 28. S.C. Code Regs (K) provides a definition of non-resident alien a person who is not a citizen or permanent resident of the United States and further states that [b]y virtue of their non-resident status non-resident aliens generally do not have the capacity to establish domicile in South Carolina. 29. Under S.C. Code Regs (A), a student who enrolls as a non-resident in an institution is presumed to remain a non-resident throughout his or her attendance and does not qualify under any of the residency provisions. 30. To establish herself as an independent resident of South Carolina for purposes of tuition and State financial assistance, an individual must show that her financial support is provided through her own earnings or entitlements, and that she does not qualify as a dependent or exemption on her parents federal tax return. S.C. Code (G)(1). To establish her independence under South Carolina regulations, an individual must show that she provides more than half of her own support for at least twelve months before starting classes and that her parents cannot claim her as a dependent or exemption on their federal tax return. S.C. Code Regs (I). 7

8 31. Under S.C. Code Regs (NN), (TT), LIFE scholarship program definitions include definitions for South Carolina resident, as well as for individuals with lawful presence. The definition of residency uses the residency requirements of not only S.C. Code , but all related guidelines and regulations promulgated by the Commission on Higher Education. S.C. Code Regs (NN). LIFE scholarship program definitions define individuals with lawful presence as individuals who are U.S. citizens, permanent residents, or non-u.s. citizens and non-permanent residents who are legally present in the U.S. S.C. Code Regs (TT). PLAINTIFF S STATEMENT OF FACTS 32. Plaintiff is a United States citizen who resides with her biological family and is a dependent of her parents. She is a college student who resided in South Carolina for more than 12 consecutive months before attempting to enroll in college or university. 33. Plaintiff asserts a fundamental liberty interest to reside with her parents as a dependent student. 34. Under State regulations, Plaintiff s parents are categorized as non-resident aliens based on their federal undocumented immigration status, and as a dependent of her parents, Plaintiff is in turn classified as a non-resident of the State. 35. Post-secondary education institutions in South Carolina have classified Plaintiff as a non-resident, charged her out-of-state tuition, and denied her State financial assistance. 36. South Carolina residency regulations classify Plaintiff differently from other U.S. citizen students who have, like Plaintiff, resided in the State for more than 12 consecutive months prior to enrolling in college or university. 8

9 37. Prior to enrolling at Converse College, Plaintiff was prepared to enroll at the University of South Carolina Upstate until the university informed her that she would be charged out-of-state tuition and did not qualify for the State s LIFE scholarship as a result of being classified as a non-resident based on her parents federal undocumented immigration status. 38. Because of the higher tuition rate that the University of South Carolina Upstate charged, Plaintiff declined enrollment and, as a result, had to forego her place in a selective South Carolina Teaching Fellows Program at the university. 39. Plaintiff opted to enroll at Converse College, which initially offered her financial assistance that included State financial assistance. However, upon learning of Plaintiff s parents undocumented federal immigration status, Converse College revised its letter of estimated financial assistance, retracting the State grant and LIFE scholarship in the letter. The letter informed Plaintiff that: Because your parents are not Legal Residents of SC, you are not eligible to receive any of the state funded scholarships or grants. Your aid has been adjusted accordingly. herein. CAUSES OF ACTION COUNT ONE FOURTEENTH AMENDMENT EQUAL PROTECTION; 42 U.S.C The foregoing allegations are repeated and incorporated as though fully set forth 41. Defendants policy and practice of classifying as a non-resident a United States citizen student who resides in South Carolina, based solely on her parents immigration status, denies Plaintiff the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution. 9

10 42. Plaintiff seeks relief under 42 U.S.C to redress the deprivation, under color of state law, of rights secured by the United States Constitution. herein. COUNT TWO FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS; 42 U.S.C The foregoing allegations are repeated and incorporated as though fully set forth 44. South Carolina residency regulations infringe on Plaintiff s liberty interest to reside with her parents. 45. Defendants policy and practice of classifying as a non-resident a United States citizen student because she resides in South Carolina with her parents who lack documented immigration status, penalizes Plaintiff and infringes on her fundamental right to familial association in violation of the Fourteenth Amendment to the United States Constitution. 46. Plaintiff seeks relief under 42 U.S.C to redress the deprivation, under color of state law, of rights secured by the United States Constitution. herein. COUNT THREE FOURTEENTH AMENDMENT PRIVILEGES & IMMUNITIES; 42 U.S.C The foregoing allegations are repeated and incorporated as though fully set forth 48. Defendants policy and practice of classifying as a non-resident a United States citizen student who resides in South Carolina, based solely on her parents federal immigration status, deprive Plaintiff of Privileges and Immunities guaranteed citizens under the Constitution. 10

11 49. Plaintiff seeks relief under 42 U.S.C to redress the deprivation, under color of state law, of rights secured by the United States Constitution. PRAYER FOR RELIEF WHEREFORE, in consideration of the foregoing, Plaintiff requests that the Court: a. Assume jurisdiction over this matter; b. Declare that the challenged policy of classifying a United States citizen student who resides in South Carolina as a non-resident for tuition and financial aid purposes due solely to her parents federal immigration status violates the United States Constitution; c. Enjoin Defendants from classifying a United States citizen student who resides in South Carolina as a nonresident for tuition and financial aid determinations based solely on her parents federal immigration status ; d. Award Plaintiff restitution and damages incurred as a result of Defendants classifying her as a nonresident for purposes of tuition and financial aid determinations; e. Grant Plaintiff the reasonable costs of suit and reasonable attorneys fees and other expenses under 42 U.S.C. 1988; and f. Grant such other relief as this Court may deem just and proper. RESPECTFULLY SUBMITTED this 10th day of June, By: Scott M. Tyler (Federal Bar No. 7245) MOORE & VAN ALLEN PLLC 100 North Tryon Street, Suite 4700 Charlotte, North Carolina T: (704) F: (704) scotttyler@mvalaw.com /s/ Amy Pedersen Amy Pedersen* MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND th Street NW, Unit 100 Washington, DC T: (202) F: (202) apedersen@maldef.org 11

12 Thomas A. Saenz* MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 South Spring Street, 11th Floor Los Angeles, CA T: (213) F: (213) *pro hac vice admission pending 12